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Re: Law on photography update

Originally Posted by John NYC

Only in some circumstances if you take your interpretation of the Porat case.

No, the Porat case would be totally irrelevant. The Porat case said that nonexpressive photography can be banned. Since laughing, crying and speaking are expressive - they express happiness, sadness etc. - then they are protected by the First Amendment.

Re: Law on photography update

Originally Posted by cyrus

John, I have no idea how often I have to tell you this: the trespass issue is totally irrelevant. I have pointed out a law review article and an article from New Jersey Lawyer. They all discuss Porat thoroughly so it isn't my opinion. It is the law.

That is not the point of my scenario, and you seem to be avoiding it on purpose. How would they rule do you think? You said twice now that laughing is protected by the first amendment. Do you think they would have upheld Porat's claims if he had been laughing instead of photographing.

You've worked yourself into some untenable logic here is the problem, and now you are trying to squirm out of it like you have on each of my posts, by calling out individual items and claiming that is my point when it isn't.

Re: Law on photography update

Originally Posted by cyrus

They don't have to "make up" anything and there doesn't have to be a specific law against photography. They can stop you from taking photos for the same reason they can stop you from playing hackey sack. There's no specific law on the books banning hackey sack in public either but since it is nonexpressive conduct, it is not subject to First Amendment protection, just as (according to Porat) recreational photography is also not protected by the First Amendment.

Yes they do have to make something up if they want to arrest you for photography. You can't be arrested for photography alone, not legally. That is just a fact. That you continue to dispute it is just ridiculous.

Final comment to you. Maybe you will get it but I doubt it: Photography is not illegal in the United States of America. You cannot be arrested (legally) for taking a picture from a public space. You can only be arrested for some other law you are breaking, perhaps while taking a picture.

Re: Law on photography update

Originally Posted by AF-ULF

When I was in law school years ago, the Texas Flag burning case had just come out. On the Constitutional Law final, we had a hypothetical about a man arrested for wrapping himself in a flag (in violation of the Texas statute), not for purposes of any expression, but because he was cold.

Re: Law on photography update

Originally Posted by John NYC

Yes they do have to make something up if they want to arrest you for photography. You can't be arrested for photography alone, not legally. That is just a fact. That you continue to dispute it is just ridiculous.

Final comment to you. Maybe you will get it but I doubt it: Photography is not illegal in the United States of America. You cannot be arrested (legally) for taking a picture from a public space. You can only be arrested for some other law you are breaking, perhaps while taking a picture.

You're just not listening. Nobody said photography is illegal. Nobody said you could be arrested for taking pictures of a public space. The point was that if yuo're a mere hobbyist photographer, your "right" to take pictures, even of a public place, is not protected by the first amendment as the "photo rights" handouts claim, and therefore your ability to take photos can be regulated or even banned, as easily as the police can prohibit someone from playing hackey sack on a sidewalk or chopping wood on a sidewalk. As a hobbyist photographer, you have no more rights to take a photo of a public place than you do to play hackey sack or chop wood in public. All of those things are "mere conduct," and not Constitutionally-protected expression. Furthermore, there doesn't have to be specific law that prohibits public photography for the police to use against you, just as there is no specific law against chopping wood on a public sidewalk in order for the police to quite legally prevent you from doing that.

Re: Law on photography update

Originally Posted by John NYC

That is not the point of my scenario, and you seem to be avoiding it on purpose. How would they rule do you think? You said twice now that laughing is protected by the first amendment. Do you think they would have upheld Porat's claims if he had been laughing instead of photographing.

You've worked yourself into some untenable logic here is the problem, and now you are trying to squirm out of it like you have on each of my posts, by calling out individual items and claiming that is my point when it isn't.

Re: Law on photography update

Originally Posted by cyrus

You're just not listening. Nobody said photography is illegal. Nobody said you could be arrested for taking pictures of a public space. The point was that if yuo're a mere hobbyist photographer, your "right" to take pictures, even of a public place, is not protected by the first amendment as the "photo rights" handouts claim, and therefore your ability to take photos can be regulated or even banned, as easily as the police can prohibit someone from playing hackey sack on a sidewalk or chopping wood on a sidewalk. As a hobbyist photographer, you have no more rights to take a photo of a public place than you do to play hackey sack or chop wood in public. All of those things are "mere conduct," and not Constitutionally-protected expression. Furthermore, there doesn't have to be specific law that prohibits public photography for the police to use against you, just as there is no specific law against chopping wood on a public sidewalk in order for the police to quite legally prevent you from doing that.

Get it? Clear??

Let see. If you chop wood or take pictures, police can stop you for, let say public disturbance. Did your actions were actually a public disturbance ? There is a matrix of four cases.

If no, with both actions you can complain to relevant authorities that you were stopped for an action which was not a disturbance. If yes, and you were chopping wood, you clearly have no recourse.

Now cyrus, are you saying that if your photography was a public disturbance, you would still be allowed to carry on with it because it protected by the 1st ?

Re: Law on photography update

Originally Posted by QT Luong

Now cyrus, are you saying that if your photography was a public disturbance, you would still be allowed to carry on with it because it protected by the 1st ?

Absolutely. See, the First Amendment generally trumps "public disturbance" prohibitions. If you're engaged in "communicative photography" then you have a RIGHT to "disturb the public" because in our system of law, free speech is deemed to be more important than not disturbing the public -- god bless the USA. The worst that the police can do is impose a permit scheme, which places some "reasonable time place manner" limits to your photography in order to try to minimize the public disturbance - but they can't prevent you from taking photos because it would cause a public disturbance. Certainly not! If only "non disturbing" speech was allowed then there would be no free speech. This is basic constitutional law. See for example the case of Terminiello v. Chicago - the guy there was charged for "disturbing the peace" because he made a radical speech that got people riled up. Supreme Court ruled that stirring people up was probably even a good thing.

In general, we don't allow or prohibit speech based on whether the public approves of it or finds it disturbing or annoying or whatever.

Note of course the it also depends on the nature of the public disturbance. Causing people to get upset and worked up is quite legal. Causing a mass riot is something else.

Re: Law on photography update

Let see. If you chop wood or take pictures, police can stop you for, let say public disturbance. Did your actions were actually a public disturbance ? There is a matrix of four cases.

If no, with both actions you can complain to relevant authorities that you were stopped for an action which was not a disturbance.

Only in theory and your complaint would go nowhere. The problem with this is that when the courts decide such matters they will almost always side with the cops. its not because they believe the cops more - though that may be the case. Rather, they are required to do so by law. If there is no constitutional right involved (and there isn't when it comes to chopping wood in public, or engaging non-communicative photography) the courts apply the absolute LOWEST standard of review in judging the legality of government actions. The courts don't want to get into the business of regulating the nitty-gritty affairs of how the police regulate things like traffic and public disturbances etc. So whether you were actually causing a disturbance or not, is largely and practically irrelevant. Once the cop swears under oath that in his opinion as a professional law enforcement officer, your non-constitutionally protected conduct was causing a problem, you'll have a hard time proving otherwise.

Re: Law on photography update

Originally Posted by cyrus

You don't consider the fact that you don't actually have a "right" to photography in a public place to be of any practical relevance? Your choice. But the "photo rights" handouts and books that say you have a right to engage in public photography are wrong. You only have this right for "communicative" photography and that excludes everyone who engages in photograph for their own enjoyment.

Is there a law or statute on the books for which I can be arrested for performing photography that is not "communicative" or pressented to an "audience"?